141 Wis. 160 | Wis. | 1909
Lead Opinion
The following opinion was filed December 7, 1909:
The appellant assails the court’s decision holding that the evidence in the case required submission of the issues whether the engineer was negligent in conducting the defendant’s business at the time Boucher was' injured; if so negligent, whether it was the proximate cause of the injury, and whether such negligence was a greater or less contributing cause in producing Boucher’s death than his contributory negligence. The facts of the case controlling these questions are within a narrow compass, and are so interrelated that a reference to them will suffice for the consideration of all the questions presented by these contentions. The foregoing statement of them makes clear what were the duties assigned Boucher and the' engineer in conducting the defendant’s business at the time of the accident. It is argued that the facts wholly fail to show that the engineer was negligent in managing the engine for the purpose of slacking the coupling chain
It is undisputed that the car had been shoved into the cinder pit; that it had been blocked; that the engine had come to a stop; that the chain forming the coupling between the car and the engine was taut so that the coupling pin could not be released without slacking; that the decedent was required in the performance of his duty to step between the car and the engine to do the uncoupling; that it. devolved on him to give the signal for slacking the coupling chain to enable him to pull the coupling pin; and that it was the duty of the engineer to move the engine for this purpose when the signal therefor was communicated to him. There is no dispute but that the signal to this effect was communicated to the engineer for this purpose. The switch foreman testifies that the decedent gave' the signal for the “slack of the pin” and that he communicated it to the fireman. The fireman testifies that he communicated it to the engineer and that he thereupon moved the engine forward. The engineer testifies that he received the signal “to slack ahead,” which implied that he was to proceed until signaled to stop. He states that his recollection of the signal is uncertain. He also testifies that he was fully informed that the car had been blocked; that the engine was required to move forward only a few inches to slack the chain in order to loosen the coupling pin; that a movement of a few inches would suffice and was the only movement toward the-car required of the engine; that the last act before moving the engine away from tire car was the uncoupling; and that he fully understood all the facts and conditions of the service in which they were then engaged. The court submitted to the jury the question of whether the engineer under the circumstances was negligent in the management of the engine which resulted in a forward movement of several feet and in contact with the car.
However, it is claimed that the engineer had no reason to anticipate that an injury would result from the movement made by the engine. The situation apprised him that Boucher was then between the ear and the engine for the purpose of pulling the coupling pin, and that such a movement as was made must result in a collision with the blocked car in the cinder pit. Surely such a movement of the engine was fraught with danger to the decedent, who was in a proper position to perform his service, and the engineer had a reasonable basis for anticipating that an injury might result from such management of the engine. We are led to the conclusion that thé facts and circumstances of the case required that the. question of the engineer’s negligence'in the management of the engine should .be submitted to the jury as was done in the first question , of the special verdict. The court informed the jury that this question included the inquiry as to whether the engineer was negligent in moving the.engine forward to remove the strain from the coupling'chain and thus to free the coupling pin so that it could be pulled. The instructions in this respect fully informed the jury of the scope of this issue
It is contended that the court erred in refusing to instruct the jury to the effect that if the engineer was found guilty of negligence it was not the proximate cause of Boucher’s death, and that his death was proximately caused by his contributory negligence. The court found as matter of law that the decedent was guilty of contributory negligence. The argument is made that the engineer had a right to rely on the fact that Boucher under no circumstances would occupy a place wherein he might be caught between the drawbars of the car and the moving engine and thus meet certain death, unless he deliberately placed himself in this obviously and imminently dangerous position. Is this a legitimate deduction from the facts and circumstances of the case? We do not so- regard it. Boucher’s conduct must be considered in the light of the situation as disclosed by the facts and circumstances under which he performed his duties. It is clear that he took a position between the car and the engine where he could readily grasp and pull the coupling pin from the coupling device of the car, and that he pulled the pin and thereby caused the chain to drop. The jury from the evidence must have found that in-giving the signal to “slack the pin” he called for a forward movement of the engine of but a few inches. In his position between the car and the engine his back was turned toward the-engine, and there was sufficient space for him to pass between the drawbars of the car and the engine. Having given the-signal to the engineer- to- come forward with the engine sufficiently to slack the pin, he, in the exercise of reasonable care, might well anticipate that the engine would move no farther
It is strenuously argued that the jury cannot determine from the evidence whether Boucher’s death was caused, in greater part by the negligence of the defendant as compared with his contributory negligence, and hence that the plaintiff has failed to establish her cause of action. In support of this claim the contention is made that the burden is on the plaintiff to establish a cause of action, and that the evidence fails to show any grounds justifying Boucher’s stepping between the drawbars, and he must therefore be held to have taken this step knowing it meant certain death. The facts and circum
An exception is urged to the testimony of Dr. Pullen for the reason that it was immaterial and from its nature operated to prejudice the jury in a controversy of this kind. We discover nothing prejudicial in the evidence. So far as received it was relevant to the inquiry as to how Boucher came to his death.
It is urged that the court erred in denying defendant’s motion to strike out the evidence of the engineer’s negligence in moving the engine as not within the allegations of the complaint. The allegations of the complaint charged the engineer with carelessly and negligently operating the engine by causing it to move forward at a dangerous speed and for a distance imperiling the decedent’s safety and thereby causing the injury. The evidence offered was relevant and material to these allegations. The objection that the questions of the special verdict did not properly cover the litigated issues and that they were so framed as to mislead the jury is not sustained. As heretofore indicated, the phrase in the first question, “slacking the pin,” was properly explained and defined by the court’s instruction as covering the inquiry respecting the negligent movement of the engine under the engineer’s management. The objections to the second and fourth questions are based on the idea that Boucher’s negligence was the sole proxi
Tbe requested questions for tbe special verdict relate to tbe same subject and were properly refused.
Tbe validity of ch. 254, Laws of 1907, is merely suggested. The decision in Kiley v. C., M. & St. P. R. Co., supra, is determinative of this question.
Numerous detailed portions-of tbe instructions given to tbe jury are called to our attention as erroneous and prejudicial. Many of them pertain to tbe questions considered above, and were not subject to tbe criticism made in view of tbe foregoing considerations and our conclusions as to those questions.
Tbe fourth question is assailed as incorrectly framed under tbe statute, in that tbe words “less or greater” were used, instead of tbe words “slighter or greater,” in determining decedent’s negligence as a contributing cause in comparison with that attributable to tbe company. We discover no cause for complaint in this. Tbe word “less” as here used conveyed tbe same idea to tbe jury as tbe word'“slighter” as used in tbe statute.
Defendant urges that a new trial should have been awarded because an impartial trial was denied it, and avers that this was occasioned by tbe improper arguments and comments concerning the evidence and fictitious issues used by tbe plaintiff’s counsel before tbe court and jury, by improper comments on tbe evidence and admonitions to witnesses by tbe court, through the order of tbe court that tbe witnesses be kept in a room separated from tbe courtroom, by permitting tbe jury to view the premises, and by plaintiff’s manner of conducting tbe case. It is claimed that tbe plaintiff’s manner and method of eliciting proof and of bringing immaterial and irrelevant matters to tbe attention of tbe jury were calculated and did operate to prejudice tbe defendant. We have examined all of
The damages awarded are alleged to be excessive. It is claimed that the court in reply to a comment by counsel to the jury confused ’ and misled the jury by the following observation :
“The question is: How much pecuniary loss has the relative suffered — that is, in this case, the wife and children of the deceased suffered — by reason of the death ?”
When the court submitted the question of damages to the jury they were instructed:
“You are not warranted in giving damages not founded upon testimony, nor can you go beyond compensation for the pecuniary injury to the wife.”
The court in effect repeated the information that damages could only be allowed the wife to compensate her for the injury caused her by her husband’s death and properly specified' the elements entering into her loss. We are satisfied that the jury were thereby fully informed of the correct rule of damages, and that any misconception which might have existed as-a result of the first statement made by the court was fully corrected. The damages were found at the sum of $7,500. The jury is given a broad discretion in assessing damages. The trial court confirmed the verdict. This is of weight in such cases. We are of opinion that the facts and circumstances of the case authorized the jury to assess the amount awarded. Ryan v. Oshkosh G. L. Co. 138 Wis. 466, 120 N. W. 264.
We find no reversible error in the record.
By the Court. — Judgment affirmed.
Dissenting Opinion
The following opinion was filed December 7, 1909:
( dissenting). The facts in this case are few and simple. The trial court held as a matter of law that the dece
Our comparative negligence statute is new. We must assume that the legislature meant what it said. Where the-plaintiff is guilty of contributory negligence he cannot recover unless (1) the negligence of the defendant is greater than his,.
Dissenting Opinion
The following opinion was filed December 21, 1909 :
{dissenting'). I agree with all said in the dissenting opinion by my Brother BarNES, and choose to add a few observations of my own. •
This case presents one of a class of those distressing situations which must be met with courage in administering our
If it were given to courts, by their humanity to man, to supply the want of written law, instead of their sphere of action being confined, as it is, to the mere administration of law as they find it, not turning aside, through pity or charity, to punish upon one side, or afford relief upon the other by taking the burden of misfortune from the backs of the weak and humble and casting it upon those of the strong and capable, nor to make distribution of misfortunes according fi> mere dictates of humanity, nor to look with any greater degree of favor upon one than upon the other, because of situations, or needs, after the manner of equitable arbitration, we could approach such a pitiful result as the one in hand in a different attitude. No suggestion is involved in this, that any one, in reaching the conclusion from which I dissent, was actuated by any less fidelity to the great trust with which we are charged, than the writer. Different mentalities with equal degrees of sympathy for human suffering, and stem fidelity to administer a trust from the standpoint of absolute right as incorporated into the law, see things in different aspects. Hence the greater certainty of many minds reaching the proper standard, than one.
"When the time shall come that the moral sense and con
With the thought that the foregoing observations are not ■out of place in a legal opinion and may bear fruit, some other day, I will proceed to a brief discussion of this case.
According to the verdict and the undisputed evidence, the deceased was guilty of a want of ordinary care in stepping ■between the bumper of the standing car and that of the engine as the two were closing together, proximately contributing to his death. That serious injury or death from any attempt to pass between the bumpers was highly probable, •seems unquestionable. It must be remembered that as the deceased made the fatal step he faced the engine. He could not 'have helped seeing it and that it was in motion. The engineer could not have well seen him. That the engineer should reasonably have apprehended the deceased might do such a reckless act, cannot, it seems, be thought for a moment. That he should reasonably have apprehended the deceased would be injured, if not clear from the cars, in case the bumpers
At this point we have reached, I think, a fatal infirmity in the court’s reasoning. Such reasoning is to the effect that there was imminent danger, in any event, of the deceased getting injured if the engineer backed his engine more than a few inches, and particularly if he backed so as to close the bumpers together. I do not so understand the evidence. On the contrary, I understand that if the deceased had remained outside the path of the bumpers, though between the end of the car and that of the locomotive, and paid the attention to his surroundings which the engineer had reason to expect he would, there would not have been any likelihood of his being injured. So it seems the case, necessarily, comes down to whether the -.engineer had any reason to expect the deceased would attempt to pass between the bumpers, before there is any room for a •comparison of direct effects of faults as regards the two actors in the tragedy.
A second fatal infirmity, in my judgment, in the court’s reasoning, is the logic indulged in, minimizing the gravity of deceased’s fault in placing his person between the bumpers. ‘“It does not appear,” says the court, “but that he may have taken the step to accomplish his duties, and that, in the ordinary course of discharging his duties, he got into the space ■through oversight, inadvertently, or that the physical condition of the track may have caused him to take this step.” As I understand that, it proceeds directly contrary to the verity in the case that the deceased was guilty of a want of ordinary care proximately contributing to his death. I must view the finding on that subject in the light of the construction which the court has placed on the legislative question; i. e. that the words “any negligence” in the question mean any want of ordinary care. Moreover, according to all the precedents in •the books, and common sense as well, it is want of ordinary
As said in,effect in the latter case, this court has adhered, notwithstanding some confusion caused by an opinion now and then, to the classification of negligence as slight, ordinary,, and gross. The first is not actionable. The second is, and the first is not a defense thereto'. The third is, and neither the first nor second is a_ defense thereto. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446.
True, it will be found stated in an opinion now and then,, that any negligence, however slight on the part of an injured person, contributing to his injury, is a defense to his action against another whose want of ordinary care was a proximate-cause thereof, but it has been explained and corrected over and over again (Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 341, 84 N. W. 446), and held that it requires more than mere slight negligence to so operate. The law in that regard is too well understood at this late day to admit of serious question. As said in my opinion in Zeratsky v. C., M. & St. P. R. Co., post, p. 423, 123 N. W. 904, that rule was one of the very tilings the legislature, by the act of 1907, intended to change. But the court thinks otherwise, holding that something more-than mere negligence is required for attack or defense in a
How can one say that the deceased “may have taken the step” that placed him between the bumpers “in the ordinary course of discharging his duties ?” No such movement was required in performing such work. No evidence in the case suggests there was. All the evidence and common knowledge, it seems negative it.
Again, how can one say, as above quoted, without losing sight of the verity that the deceased was guilty of a want of ordinary care, proximately contributing to his death, in placing himself within the zone of imminent danger ? Does not the thought that he may have stepped between the bumpers “in the ordinary course of discharging his duties” run directly counter to such verity ?
Again, where is the evidence that the deceased stepped between the cars “in the ordinary course of discharging his duties,” or evidence “that the physical condition of the track may have caused him to take this step ?” The court does not point to any1. Counsel for respondent does not claim there is any. There is none in fact. So, is not the logic upon which the result here stands, which is a repetition of the logic upon which the learned trial court grounded the decision, the merest conjecture; a substitution of mere possibility for probability and supposition for facts and evidence of facts, contrary to many decisions of this court? Gibbons v. Wis. Valley R. Co. 58 Wis. 335, 17 N. W. 132; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 225, 80 N. W. 1020; Gagan v. Janesville, 106 Wis. 662, 82 N. W. 558; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36; Clark v. Franklin F. M. F. Ins. Co. 111 Wis. 65, 86 N. W. 549; Hart v. Neillsville, ante, pp. 3, 14, 123 N. W. 125, 129.
The above and a large number of cases repudiate the
The last foregoing leads to this fatal infirmity in the court’s logic: If mere supposition could be legitimately indulged in at all to efficiently minimize the prima facie case of contributory negligence established by direct and circumstantial evidence, when the burden of proof is on the defendant to establish the fact in that regard, overcoming the presumption of freedom from such fault, it cannot on the question of superior direct effect in producing the injury. It must be conceded, I think, the burden of proof on that matter is on the plaintiff. It seems the court must have overlooked that fact in reasoning from conjectural situations and happenings, as if the question were whether there was any contributory fault on the part of
I will not pursue the subject of comparative effects further. Looking only at the evidence, freed from all mere suppositions ■of what might have occurred, of which there is no evidence, we have these plain facts: The deceased, face to the engine which was moving toward the standing car, and observant thereof, or reckless because he was not, but more or less obscured from the engineer’s view, with time to step out from ■between the cars, as he should have done, and as the engineer ■had every reason to suppose he would do, the instant he pulled the pin, and yet where, as a skilled brakeman, he was in no danger, even if he did not step out, he stepped into the place which, of all others, no reasonably prudent person would ordinarily have expected him to, and was transfixed by the bumpers and killed, as he, more than any other person, under the circumstances ought reasonably to have apprehended might be the case. I cannot escape so concluding and that the result here should be accordingly, and that the logic upon which a contrary result has been reached runs counter to the ■general trend of our decisions, modified as they are by the act ■of 1907.
It seems that I should not close this opinion without acquitting the trial court of having reached the conclusion which has been affirmed, except under the mistaken notion, as appears, that he was really powerless to disturb the finding of the jury. He evidently took the law of 1907 as requiring, under all circumstances, submission to the jury of the question of comparative direct effects of the faults of the adversaries and that the finding, however absurd it might appear to him, was binding. He took the act of 1907 as it reads, frankly saying that, in his judgment, the verdict was wrong, but that the legislative command was, in all cases, to take the opinion of
Tbe appellant moved for a rebearing, but afterwards withdrew the motion and on March 21, 1910, obtained a writ of error removing the cause to the supreme court oí the United States.